Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NAZIR AHMED VS Respondent: StateHonorable Justice Muhammad Saleem Jessar
2022 Y L R Note 41 [Sindh (Sukkur Bench)] Before Muhammad Saleem Jessar, J NAZIR AHMED---Appellant Versus The STATE---Respondent Criminal Appeal No. S-32 of 2013, decided on 2nd January, 2019. (a) Penal Code (XLV of 1860)--- ----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused official Sub-Sale Inspector during his posting at Bulk depot, misappropriated the government fertilizer and seed/cotton---Record showed that no specific date of the offence had been mentioned in the FIR and even it was lacking in the charge framed by the Trial Court---Witness/landlord of the godown had deposed that on 07.12.1995 while he was on the way towards mosque from his home, he had seen that one truck was being loaded with fertilizer where the accused-appellant allegedly was present---Again on 05.12.1995, he had seen at Isha prayer time that the accused was getting the truck loaded with fertilizer---On 9.12.1995, he had visited the godown and found accused selling the fertilizer in retail---Soon after 09.12.1995, he learnt that a case had been registered against the accused-appellant---Said witness, in his cross-examination had deposed that he did not remember the quantity of fertilizer bags and was not in a position to specify whether the bags were containing wheat or other food grain---Witness owned some piece of agricultural land but had not purchased fertilizer from the accused---Said witness though was an educated person, despite that he did not note the registration number of the trucks nor inquired names and whereabouts of the labourers and that of truck drivers---Being government employee, he should have noted that on 09.12.1995, which was Saturday and was not holiday, how he noted that office was opened and fertilizer was being sold out by the accused-appellant on retail---Said witness had not disclosed the specific time of his going towards the said office---Witness being landlord of the premises, rented out his godown to the Department and had relationship with complainant, thus, he was an interested witness, therefore, his evidence could not be entertained to sustain conviction against the accused-appellant---Record revealed that the evidence of the witnesses, examined by the prosecution in support of the prosecution, including the alleged eye-witnesses and the Investigating Officer, were recorded by the Trial Court without providing a counsel to the appellant---Record also revealed that none of the witnesses was cross-examined by the accused/appellant properly---Accused, before the conclusion of the trial moved application under S.540-A, Cr.P.C. for recalling and re-examining of the prosecution witnesses but his request was declined by the Trial Court---Identical prayer was made on behalf of the State which was granted--- Evidence adduced by prosecution was not inspiring confidence to maintain the conviction against the accused---Case being that of misappropriation was based upon documents which were in the custody of prosecution/ department concerned---Prosecution was under obligation to establish first the stock of the alleged fertilizer etc. duly entrusted by the department to the accused---No charge paper showing the availability of the requisite quantity of bags of different items lying in the godown were handed over to accused at the time of his posting and taking over of charge---Accused was appointed to work at said godown in the year 1991 and present offence, allegedly occurred in the year 1995 and no appropriate or specific date and time had been shown---Before constituting an offence of misappropriation, the prosecution was bound to adduce the details of the stock handed over to the accused---No specific document in that regard had been adduced in evidence to show that on which date, the alleged stock was brought at the godown through particular consignment---Mere word against word had been adduced by the prosecution which could not constitute any offence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Allah Bux Shaikh and others v. The State 2004 PCr.LJ 503 rel. (b) Criminal trial--- ----Cross-examination, right of---Scope---Right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him not only on facts but also to discredit the witness by showing that his examination-in-chief was untrue---Purpose of cross-examination of a witness had been shown as a right, apart from being a natural right is also a statutory right. (c) Constitution of Pakistan--- ----Art. 10(a)---Fair trial---Scope---Criminal trial---Accused had not only a valuable right to get himself represented, but he had also the right to be informed thereabout---Every person, therefore, had a right to a fair trial by a competent court in the spirit of the right to life and personal liberty---High Court observed that object and purpose of providing competent legal aid to undefended and unrepresented accused persons were to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. Zahira Habibullah Sheikh v. State of Gujrat (2006) 3 SCC 374; AIR 2006 SC 1367 and AIR 2006 SCW 1340 rel. (d) Penal Code (XLV of 1860)--- ----S. 409---Breach of trust by public servant---Appreciation of evidence---Constitution of offence---Requirement---Prosecution case was that the accused official Sub-Sale Inspector during his posting at depot, misappropriated the government fertilizer and seed/cotton---Mandatory ingredients to constitute offence under S.409, P.P.C. was entrustment and breach of trust---Bunch of documents though had been adduced in evidence, not a single paper showing the availability of alleged stock had been specifically brought on record to prove the same---Fertilizer as well as seeds of different grain was the items which could not be retained for over years and same being the commodity of particular season was to be sold out/supplied and brought for the purpose---No offence had been constituted in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. Appellant in person. Mir Afzal Hussain Talpur, A.P.G. for the State. Date of hearing: 20th November, 2018. JUDGMENT MUHAMMAD SALEEM JESSAR, J.---Appellant Nazeer Ahmed Jumani has assailed Judgment dated 29.03.2013, passed by the Special Judge Anti- Corruption Sukkur in Case No.59/1999, Re: State v. Nazeer Ahmed Jumani, Incharge SASAO Sub-Bulk, Depot, Tharo Mirwah District Khaipur, culminating from Crime No.01/1996 registered at ACE Tharo Mirwah under section 409, P.P.C., read with section 5(2) Act-II of 1947. The trial court after full dressed trial has convicted the appellant under section 245(2), Cr.P.C. for offence punishable under section 409, P.P.C. read with section 5(2) Act-II of 1947, and sentenced him to suffer R.I. for three years and to pay fine of Rs.16,08,600/- and in case of default in payment of fine, he was ordered to undergo S.I. for one year more. However, benefit of section 382-B, Cr.P.C. has been extended to him. 2. The crux of prosecution case, as unfolded by complainant Syed Zamir Hussain Shah, the then DASO/SASO Ranipur, in FIR No.01 of 1996, the contents whereof are narrated as under: 3. The case is registered on report of DASO/SASO Ranipur vide No.DASO/ SASO/RNP/DoF/T.M Wah/96/63-67 dt: 16.01.1996. After obtaining permission from ACC-II, Khairpur and D/D/ACE/ Sukkur vide his order No.D/D/ACE/ 4504 dt: 12.06.1996 Mr. Zamir Hussain Shah DASO Ranipur reported that the stock of Bulk Depo, Mrwah was checked by the board of officers/officials of SASO in presence of the Magistrate on 19.12.1995 and 20.12.1995. During the handing over of charge to Mr. Khushi Muhammad Tunio Sub SASO Inspector through Magistrate and board of SASO officers/officials. The following stock of accused Nazir Ahmed Juntani Sub Sale Inspector found short on ground. The stock misappropriated by accused Nazir Ahmed Jumani Sub Sale Inspector, Sub Bulk Depot Thari Mirwah is as under:
S. No.
Variety
Stock found
Rate
Amount
1.
DAP
2,435 bags
Rs.560/-
13,63600
2.
SOP
01 bag
Rs.300/-
300/-
3.
Cotton
10 bags
Rs.690/-
6900/-
4.
Urea (Imported)
620 bags
Rs.290/-
2,37,800/-
Total
Rs.16,08,600/-
The accused official Nazir Ahmed Jumani sub Sale Inspector during his posting as Sub Bulk Depot, Thari Mirwah, mis-appropriated the government fertilizer and seed/cotton. Hence this case is being registered. 4. After registration of the case, investigation was carried out and after completion of legal formalities and after obtaining permission from the competent authority the Additional Circle Officer namely Mukhtiar Hussain submitted charge sheet against the appellant on 12.04.1999. After accepting the challan learned trial Court took cognizance of the case, supplied copies of documents to appellant in terms of section 241(i), Cr.P.C. vide Ex.01. Subsequently, a formal charge Ex.02 was framed against the accused on 25.10.1999, to which he pleaded not guilty and claimed to be tried vide his plea Ex.3. On 16.12.1999 advocate and legal adviser, SASO, Sukkur filed his statement to the effect that he would assist the prosecution on behalf of complainant/organization vide Ex.04. 5. In order to prove the charge against the accused, prosecution examined PW-01 Sadoro Khan at Ex.05, PW-02 Zamir Hussain Shah was examined at Ex.06, who produced charge fard as Ex.6/A, letter for registration of FIR as Ex.6-B and FIR as Ex.06-C, statement filed by legal advisor of complainant organization as Ex.7. PW-03 Fakir Muhammad was as examined at Ex.8, while PW-04 Bux Ali was examined at Ex.9. An application was filed by the PDSP for summoning PW Shahzado vide Ex.10. PW-5 Shahzado was examined at Ex.11, who produced mashirnama as Ex.11-A/1 to Ex.11-A/5, charge report ass Ex.11-B. Learned A.D. (legal) gave up PW Ghulam Rasool vide his statement Ex.12. PW-6 Mukhtiar Hussain was examined at Ex.13, who produced letter for permission to submit challan as Ex.13-A, and letter for permission to register FIR as Ex.13-B. PW Mehboob Ali was examined at Ex.13, who produced mashirnama of recovery of record as Ex.13-A and other relevant record from Ex.13-B to Ex.13-E. Thereafter, side of prosecution was closed. 6. Statement of accused under section 342, Cr.P.C. was recorded vide Ex.14, wherein he denied the prosecution allegations and claimed to be innocent. However, in reply to Q.No.04, he deposed that on 06.12.1995 he was available when at the time of weighment of 848 bags, out of them, 48 bags were underweight. In support of his contention he submitted such statement as Ex.14-A wherein was shortage of 48 bags. He further deposed that from 07.12.1995 he had fallen ill and was unable to attend the duties, therefore, weighment was made in his absence. In support of his contentions, he submitted medical certificate and prescriptions as Ex.14-B and 14-C. In his statement, he further stated that he had sent telegram to higher authorities on 12.12.1995 to the effect that DASO/ SASO Ranipur namely, Zamir Hussain Shah, (the complainant) had taken away fertilizer etc. from his depot in his absence by breaking locks. He produced copy of telegram dated 12.12.2195 at Ex.14-D. One Hussain Bux, a truck driver had also sworn his affidavit on 18.07.1996 regarding taking away of the fertilizer by Zamir Hussain Shah. Copy of such affidavit was produced as 14-E. During investigation the said Hussain Bux stated same facts in his 161, Cr.P.C. statement before the I.O. The copy of 161, Cr.P.C. statement of said Hussain flux dated 18.08.1996 has also been produced as Ex.14-F. Affidavit of one Mohammad Ali, so also 161, Cr.P.C. statement of said Mohammad Ali recorded by the I.O. on 06.12.1997 has also been produced as Ex.14-G and 14-H respectively. Statement of Ghulam Rasool under section 161, Cr. P.C. was also recorded by the I.O. during investigation on 15.08.1996. Copy of said statement was also produced as Ex.14-I. 7. DW Mohammad Ali was examined on 23.06.2007 at Ex. 15. In his deposition he deposed that about ten years back when he was passing from bus stop Pir Wassan, he found that huge quantity of fertilizer bags was lying by the side of road which was as being sold by one Ali Khan a Chowkidar of SASO department at low rate as he was directed by Zamir Hussain Shah DASO/SASO to dispose of the same. Besides, many persons were available to purchase same, as it was being sold at the rate of Rs.500 per bag. Since he was not in need of the same as such he did not purchase the DAP or Urea from Ali Khan. This PW was subjected to cross-examination by the PDSP but nothing fruitful was brought out from his mouth. PW Ghulam Rasool was also examined on 04.09.2007 at Ex.16. He deposed to the extent that one Ali Khan was present from whom he enquired about the appellant who disclosed that he had been lying ill. He further found that two trucks were being loaded with fertilizer as such he made inquiry from Ali Khan who disclosed that due to his ailment, the DASO Syed Zamir Hussain Shah was getting the trucks loaded. This PW was also subjected to cross-examination but nothing was fruited from him. 8. The appellant moved an application under section 540, Cr.P.C. for recalling of PWs namely Syed Zamir Hussain Shah and Fakir Mohammad which was declined by the trial court on 18.11.2009. The appellant challenged said order before this court but the same was also declined by means of order dated 31.08.2012. However, identical application under section 540, Cr.P.C. was filed by the SPP for the State for recalling and re-examining of PW Mukhtiar Hussain Lashari for the purpose of producing permission letter for prosecution of the accused at Ex.18 which was allowed by consent. Hence, the permission letter was taken on record and later the side of prosecution was closed on 02.03.2012 vide Ex.19. It is astonishing to note that after examination of the DWs no side close statement was filed by the defence nor was directed by the trial court; however, the further statement of the appellant under section 342, Cr.P.C. was recorded at Ex.20 by putting almost same questions to which he deposed that his statement may be treated as same which was recorded earlier on 30.05.2007. 9. I have heard the appellant in person and learned Assistant Prosecutor General (APG) Sindh and have gone through the material made available on record. 10. The appellant argued that he had not misappropriated a single bag of fertilizer or cotton seed etc. and the prosecution has prosecuted him at the instance of complainant Syed Zamir Hussain Shah due to departmental intrigue and at the time of receiving the bags and weighment 48 bags were short, so also there was shortage in weight, therefore, he had submitted such statement to his high-ups. He further submitted that on the following day, due to his ailment, he was not available and whatever weighment was made in his absence is not on his part and it was to be questioned from the person/official who conducted the weighment of the bags in his absence. He next submits that since complainant was biased with him and he being Incharge of the district, his complaint was not heard or given weight by the superiors, therefore; he was condemned unheard. The appellant further submitted that due to financial constraint he was not in a position to engage a counsel on his behalf to defend his case. However, as and when he arranged some amount he moved an application for recalling of the PWs complainant as well as Fakeer Mohammad but his request was turned down by the trial court as well as by this court hence, he being laymen having no legal know-how, was not competent to conduct the cross, therefore, the truth behind the screen was not surfaced. However, identical application moved by the prosecution was allowed by the trial court whereas his application was declined. According to him he could not understand the wisdom behind such injustice which shows double standard treatment on the part of trial court. He further stated that to conduct cross-examination of the PWs who had deposed against him was his right but he was deprived of the same. He next submitted that trial court had not appreciated the evidence as well as material available on record. He further submitted that offence pertains to year 1995 and no specific date or time of the offence has been shown by the prosecution. He next submitted that nothing incriminating was recovered from him or was recovered from elsewhere, even none was brought before the court who ho could have deposed that he had obtained the said fertilizer from him at cheaper rate to deduce that he had committed an offence of misappropriation by causing loss to the provincial government. He lastly submitted that punishment provided by the law as well awarded to him is three years; however, he has been in litigation right from 1995. He therefore, prayed that by allowing instant appeal, impugned judgment may be set-aside and he may be acquitted of the charges. 11. Conversely Mr. Mir Afzal Hussain Talpur, A.P.G. appearing for the State, vehemently opposed the appeal and supported the impugned judgment on the ground that the appellant being government servant was custodian of the government property but he has misappropriated the same. He next submitted that by selling the fertilizer bags etc. He had misappropriated the property entrusted to him thereby has caused financial loss to the provincial government. He further submitted that case of misappropriation has been established by the prosecution and the witnesses who deposed against the appellant were not subjected to cross-examination therefore, according to him, the evidence having not been shattered, deemed to have been admitted, hence, he does not deserve any relaxation or concession as the trial court, by awarding lesser punishment, has already taken a lenient view. However, learned APG did not controvert the fact that the alleged truck through which the appellant had allegedly sold out the fertilizer etc. was not noted whether the same was four-wheeler or ten-wheeler, nor its registration number has been shown. Even the labrourers, who allegedly loaded the truck, were not inquired about their whereabouts, so also the truck driver was not asked about the loading and subsequently its transmission to any godown, shop or the dealer. Learned APG has focused upon the evidence of one Saddoro Khan and Fakeer Mohammad both alleged eye-witnesses examined vide Exs.05 and 08 respectively and submitted out of these two witnesses, one had witnessed that the truck was being loaded, whereas other one is the person who provided labours to the appellant for loading the truck. Mr. Talpur has not pointed out any person to whom alleged fertilizer after loading from the government Depot was delivered nor such person was arrayed either as witness or an accused during inquiry or in investigation. He lastly contended that no prejudice was caused to accused in not providing him a defence counsel. He prayed that the appeal having no merits and consideration, be dismissed. 12. It is worthwhile to note here that no specific date of the offence has been mentioned in the FIR and even it is lacking in the charge framed by the trial court vide Ex.02. PW Saddoro Khan who was government employee working as high school teacher and was the landlord of the godown admeasuring about 1400 Sq. ft. rented out the same to the SASO Department on rent, the said rent agreement was terminated in the year 1999. He had appeared before the trial court and deposed that on 07.12.1995 while he was on the way towards mosque from his home, he saw that one truck was being loaded through labrourers with fertilizer where the appellant allegedly was available. Again on 05.12.1995 he saw at Isha prayer time that the accused was getting the truck loaded with fertilizer. On 09.12.1995 he had visited the godown and found accused was selling the fertilizer in retail. Soon after 09.12.1995 he learnt that a case has been registered against the appellant therefore he was examined by Sub-Circle Officer (SCO), Anti-Corruption Establishment (ACE) Thari Mir Wah. In his cross, PW Saddoro Khan deposed that he couldn't remember the quantity of fertilizer bags and was not in a position to specify whether the bags were containing wheat or other food grain. Though he owned some piece of agricultural land but had not purchased single bag of fertilizer from the SASO. He had been collecting the check of rent amount from SASO. He had also admitted that he has some relationship with Syed Zamir Hussain Shah, the then DASO, being landlord and had business relationship with said Zamir Hussain Shah (the complainant). This witness though was an educated person, despite that did not note the registration number of the trucks nor inquired names and whereabouts of the laborers and that of truck drivers. Being government employee, he should have noted that on 09.12.1995 which was Saturday and was not holiday how he noted the SASO office was opened and fertilizer was being sold out by the appellant on retail even he had not disclosed the specific time of his going towards the SASO office. Beside he being landlord of the premises, rented out his godown to SASO Department and had relationship with complainant, thus he was an interested witness, therefore, his evidence cannot be maintained to sustain conviction against the appellant. 13. Complainant Syed Zamir Hussain Shah, the then DASO/SASO, examined at Ex.06, had deposed that on 01.06.1995 he taken over the charge of the post of DASO/SASO Ranipur from one Mr. Mohammad Bachal Dharejo. During those days, appellant was working as Sub-Sale Inspector in SASO Department and was detailed to work as Sub Bulk Depot Thari Mir Wah. After taking over of his charge lie found that appellant was having 2400 DAP Bags as underweight therefore, after having permission from high-ups for standardization of those underweight bags under letter No.2880 dated 04.12.1998, a board was constituted for getting the weight standardization consisting of Store Inspector, Mr. Shahzado Shaikh, Senior Clerk Ghulam Qadir Lashari and the appellant. The board started the weight standardization on 06.12.1995 and weighed 848 out of which 800 bags were found to be made out of standard weight, whereas 48 out of 848 bags were found short of the prescribed weight. He further deposed that on 07.12.1995 he visited the SASO Office when appellant was absent while Chowkidar Ali Khan and remaining two members of the board were available. Again on 11.12.1995 appellant was found absent as such was suspended. He further deposed that one Khushi Mohammad Tunio was posted as Incharge Bulk Depo Thari Mir Wah on 18.12.1995. Again at his request Mukhtiarkar Thari Mir Wah was directed by the then District Magistrate to supervise the weighment proceedings. Accordingly, in his presence weighment process was conducted which continued upto 21.12.1995. It was found that there was shortage of 2400 bags of DAP amounting to Rs.1363600/- one bag of SOP Rs.300/- ten cotton seeds bags of Rs.6900/-, 820 bags of Urea worth amount Rs.237800/-, thus total amount due to such shortage came to the tune of Rs.16,08,600/. He therefore, submitted such report dated 21.12.1995 as Ex.06/A. Later on departmental inquiry was conducted by Director, Inspection Stocks and Recovery, SASO Hyderabad on 15.01.1996. Thereafter, he was directed to get the case registered against the appellant. On 16.01.1996 he wrote a letter to SCO-ACE, Thari Mir Wah for registration of FIR. Such copy was produced by him as Ex.06/B and consequently FIR No.01/1996 was lodged. It is worthwhile to note here that the report Ex.06/A does not bear the signature of the Magistrate/Mukhtiarkar in whose presence alleged weighment process was conducted and even the name of that Mukhtiarkar was not disclosed by the complainant either in the FIR or in his deposition. Besides, the said alleged weighment was conducted in absence of the appellant. 14. PW Fakeer Mohammad Mallah Ex.08 a private labour Jamadar examined before the trial court deposed that he was posted at SASO Bulk Depo, Thari Mir Wah in the year 1995 and he used to work as labour Jamadar whenever there happens some loading or unloading of the trucks at the said depot. He deposed that on 5th or 6th December, 1995 was called upon by the appellant for providing labour for loading the truck of DAP fertilizer, as such he along with Saddoro Khaskheli and other labour went to SASO Depot for loading the truck. He got loaded the truck of fertilizer along with labour on 07.12.1995. He however deposed that he was unaware of the destination of the truck…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.